Saturday, August 18, 2007

Sibel Edmonds, NSA Spying, State Secrets and Kafka

There's been a lot of outrage these last couple of days about the absurd court hearings in the NSA spying cases where the US government basically said to the court 'Yeah, we could tell you, but we'd have to kill you.'

None of this comes as a surprise to me because I've been following the case of former FBI translator Sibel Edmonds for a number of years.

As I've been saying, Sibel has been the canary in this coal mine since 2002.

In many ways, Sibel's situation regarding State Secrets is much worse than what we've seen this week. For starters, her passport, drivers license and birth certificate all contain Top Secret information.

Let's first review the court cases pertaining to illegal spying this week.

Super Blogger Scott Horton gives a representative overview

Beyond KafkaIn Franz Kafka’s novel "The Trial", Josef (Kafka) awakens one morning to discover that he has been charged with a crime. He never really ascertains what the crime is—apparently it’s secret, or what the court is before which he is to be brought, which apparently is also secret. And he’s not sure if he really has a lawyer, either, though people appear from time to time claiming to be that. At the core of the novel is the parable “Before the Law,” in which we learn that the law, itself, is a secret, so he may never know what it is. Now this could be the fantasy world of Franz Kafka. Or it could be the legal world which George W. Bush and Alberto Gonzales are very busy crafting in America this very day.

Consider this report of a trial proceeding in Kafkaesque absurdity, which is to say, in accordance with Bush Administration secrecy notions, in San Francisco. Coverage courtesy of Wired magazine:

2:20pm PDT

Judge Harry Pregerson suggests the government is asking the courts to “rubber stamp” the government’s claim that state secrets are at risk “Who decides whether something is a state secret or not? ... We have to take the word of the members of the executive branch that something is a state secret?”

[U.S. Attorney] Garre counters that the courts should give “utmost deference” to the Bush Administration.

Judge Pregerson: “What does utmost deference mean? Bow to it?”

2:30pm PDT

All three judges are giving Garre skeptical questions about the power of the state secrets privilege. They’re also getting stonewalled a bit.

“Was a warrant obtained in this case?” Judge Pregerson asks.

“That gets into matters that were protected by state secrets,” Garre replies.

2:45pm PDT

Judge McKeown asks whether the government stands by President Bush’s statements that purely-domestic communications, where both parties are in the United States, are not being monitored without warrants.

“Does the government stand behind that statement,” McKeown asks.

Garre: “Yes, your honor.”

But Garre says the government would not be willing to sign a sworn affidavit to that effect for the court record.

Pregerson, by his record, is the most liberal judge on the panel, and he clearly thinks the government is just looking for a blank check for their secret program. But the other two judges aren’t thrilled either. They seem perplexed that the government attorney can’t swear under oath that the Bush Administration isn’t warrantlessly spying on domestic phone calls.

Note the core: whether the Government is breaking the law is a “state secret.” This will, I believe, be used by historians as a hallmark for the entire Gonzales Justice Department: the use of the state secrets doctrine to cloak criminal conduct. The question now is whether we still have judges with a spinal column.

Expanding on that theme, the government argues that the Al-Haramain case needs to be thrown out because the secret document that the government accidentally gave the foundation is so secret that it is outside of the case.

Bondy claims the plaintiff's memories of the document can't be allowed into the case because the only way to test them is against the "totally classified" document.

"Once the document is out of the case, which it has to be since it is privileged, the only way to test the veracity of their recollections is to compare it to the document," Bondy says.

The lower court allowed the case to go forward based on the Al-Haramain Foundation lawyers' memories of the document, but ruled that the document itself was not allowed into the case.

Judge Hawkins wonders if the document is really that secret?

"Every ampersand, every comma is Top Secret?," Hawkins asks.

"This document is totally non-redactable and non-segregable and cannot even be meaningfully described," Bondy answers.

The government says the purported log of calls between one of the Islamic charity directors and two American lawyers is classified Top Secret and has the SCI level, meaning that it is "secure compartmented information." That designation usually applies to surveillance information.

4:25pm PDT

Judge McKeown: "I feel like I'm in Alice in Wonderland."

Eisenberg: "I feel like I'm in Alice in Wonderland, too."

Now, let me highlight some differences between this particular case (I'll call it 'NSA' for simplicity) and Sibel's case (in no particular order):1. If I'm not mistaken, Sibel's case was the first invocation of State Secrets Privilege (SSP) by the Bush administration. We are now approaching 30 invocations.

2. The NSA case arguably does involve State Secrets. The NSA case is ostensibly trying to protect sources and methods which ostensibly pertain to national security (even though the activity might be criminal). In Sibel's case, the SSP was invoked purely to hide self-serving criminal activity by "high-level officials." Further, the NSA case has essentially been a secret since it began. In Sibel's case, the details weren't even considered classified until the Attorney General invoked the SSP and retroactively classified the information.

3. In the NSA case, the plaintiffs (and reporters, and bloggers) were actually in the court to hear the government lawyers spout their nonsense. In Sibel's case, the public and the press were kicked out of court before her (ACLU) lawyers could present her case. Even worse, after Sibel and her lawyers presented their case, they were kicked out of court so that the government could argue its case in private.

4. In the NSA case, the judges are skeptical, to the point of hinting that they might give an adverse ruling. In Sibel's case, the judge ruled in favour of the government, stating 'I know this is draconian, but who am I to argue with the government on matters related to national security?'

5. In Sibel's case, the State Secrets Privilege specifically classified much of her personal history: a) her date of birth b) her place of birth c) the languages she speaks d) the universities she attended e) the university degrees she attained f) the fact that she worked as a translator at the FBI g) the fact that she was fired from the FBI

6. (etc)

Sibel's drivers license, her birth certificate and her passport are all therefore classified Top Secret.

So, yep, let's focus on the outrages of the NSA case and the abuse of the State Secrets Privilege, but let's also remember that Sibel's case is Ground Zero for abuse of State Secrets Privilege. If we didn't let them get away with it in her case, they probably wouldn't dare attempt the stunts we saw yesterday.